In re Estate of Perry

Full title: IN THE MATTER OF THE ESTATE OF OMA BELL PERRY, Deceased

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Aug 15, 2007

No. 04-06-00205-CV (Tex. App. Aug. 15, 2007)

Opinion

No. 04-06-00205-CV

Delivered and Filed: August 15, 2007.

Appeal from the County Court, Real County, Texas, Trial Court No. 03-08-997-PR, Honorable William T. McGee,¹ Judge Presiding.

1 Sitting by special assignment.

Affirmed in Part; Reversed and Rendered in Part; Reversed and Remanded in Part.

Before: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, PHYLIS J. SPEEDLIN, Justice.

OPINION

PHYLIS J. SPEEDLIN, Justice.

Pedro and Maria Rangel appeal the trial court's judgment relating to the distribution of assets from the estate of Oma Bell Perry. The Rangels also appeal the trial court's grant of partial summary judgment in favor of the estate's independent executor, John E. Bakke, III. On cross-appeal, Bakke challenges the trial court's award of certain real property to the Rangels, and the other defendants challenge various jury findings and damage awards. Based on the following analysis, we affirm the trial court's judgment in part, reverse and render in part, and reverse and remand in part.

Factual And Procedural Background

For the majority of her lifetime, Oma Bell Perry lived on a 6,991 acre ranch (the "Big Springs Ranch") on the Frio River located in Bandera and Real Counties. She also owned more than 1,200 acres in Uvalde County (known as the "Concan property"). Perry never married or had children. Her ranch hand, Pedro Rangel, came to work for her in 1971, and performed all the ranching duties, including a cattle operation and hunting lease. His wife, Maria Rangel, joined him in 1983, and performed all the household and caretaking duties for Perry. The Rangels were the only full-time employees on the Big Springs Ranch. The Rangels continued living on the ranch and working for Perry until her death on May 29, 2003, at the age of 90 years old.

Desiring to build a children's home and school on her ranch, Perry worked with her long-time attorney, Wiley Thomas from Brazoria County, to find a suitable charitable institution to help fulfill her dream. She gift-deeded her ranch to the MO Ranch and later to St. Jude's Ranch for Children during the early 1990s; ultimately, however, the ranch was returned to Perry due to the grantees' inability to comply with Perry's deed restrictions concerning the children's home and school. In the mid-1990s, Perry learned of the Hill Country Youth Ranch (the "Youth Ranch"), a non-profit corporation controlled by Gary Priour and his family, which ran a children's home in Ingram, Texas. John E. Bakke, III, a San Antonio lawyer specializing in estate planning, drafted two gift deeds conveying Big Springs Ranch from Perry to the Youth Ranch. The 1995 gift deed conveyed an undivided one-third interest in the ranch to the Youth Ranch, while the 1996 gift deed conveyed the remaining two-thirds interest to the Youth Ranch. The deeds contained more than twenty restrictions, including a provision that the ranch "shall be used for the construction, maintenance and operation of a non-sectarian school and home for needy children and, to the extent funds are available, a retirement center for people rooted in the highest standards of the Judeo-Christian tradition. . . ." Additionally, Perry provided in both deeds that the Rangels shall have "a right to live in the house they now occupy [behind the carport of the main residence] so long as they are employed by Grantor. If they continue to work there until their retirement, they will have free use of all the retirement home facilities which includes room and board." Perry reserved a life estate for herself in both deeds.

From 1996 through 2001 Bakke prepared various estate planning documents for Perry, including: (1) the Oma Bell Perry Living Trust; (2) a statutory durable power of attorney appointing Emily Bierschwale, Perry's second cousin, as Perry's attorney-in-fact; (3) the Oma Bell Perry Charitable Remainder Unitrust for the Benefit of the Hill Country Youth Ranch (the "Charitable Unitrust"), funded with $1.2 million from the sale of 510 acres of the Concan property; (4) the Last Will and Testament of Oma Bell Perry; and (5) a First Codicil to the Last Will and Testament of Oma Bell Perry. During the same time period, Bakke continued to advise and represent the Youth Ranch, also serving on its board of directors and holding various offices in the corporation, including serving as Treasurer beginning in 1998 and as President beginning in 2003.

In February 1998, Perry asked Bakke to take Thomas's place as independent executor of her estate and he agreed. On February 16, 1998, Perry wrote a letter to Bakke, which included a copy of her existing will, stating:

I had planned to set up an endowment for Pedro and Maria but have never been financially able . . . From the sale of my assets I would like to provide for them when he reaches 65 (or earlier if necessary). In my deed to the youth ranch they are to live here and have access to all the advantages of the retirees, but without charge. (Full room and board). I had in mind something like a charitable trust. At their deaths the trust should go to the children's home. I want the full payment to go to the survivor when one or the other dies.

In March 2000, Bakke prepared a new will for Perry which made specific bequests of $100,000 each to three different charities, and left the residuary of Perry's estate to the Youth Ranch. The only provision in the will which pertained to the Rangels was the following: "I forgive the balance of any indebtedness owed to me at the time of my death by my faithful ranch hand, PEDRO RANGEL TRUJILLO, and his wife, MARIA." During 2001, Perry constructed a new two-story home on the ranch for Pedro and Maria and their three children. In July 2001, Pedro was diagnosed with brain cancer and had surgery. In August 2001, Bakke prepared a codicil to Perry's will which provided, in part:

I have already provided that my friends and faithful employees, Pedro Rangel Trujillo and his wife, Maria, are to be permitted to occupy the residence built for them as long as either one of them lives. I make this First Codicil to my said Last Will to further direct that they are to be employed and receive an appropriate amount of compensation, for as long as either one of them lives. In short, I am very grateful for their loyalty to me and I want to be certain that they are cared for in their later years. I do not wish to unduly prolong the settlement of my estate, so I leave it to the discretion of my Executor as to whether the purchase of a commercial joint and survivor annuity may be an appropriate means of carrying out my wishes in this regard.

In October 2001, Perry had a stroke and spent several weeks in a rehabilitation facility before returning home to the ranch. The Rangels moved into their newly constructed home around Christmas 2001.

In March 2002, Perry, who was then 89 years old, hired a Uvalde attorney, Todd Durden, to draft a gift deed conveying the remaining 724 acres of the Concan property to Pedro. The deed erroneously contained only a partial description of the property, resulting in a conveyance of only 320 acres. Bierschwale learned of the conveyance and expressed her concerns to Bakke, who then drafted a declaration to activate Bierschwale's power of attorney over Perry. On June 14, 2002, Bierschwale had Perry sign the declaration and another document in which Perry resigned as trustee of her Living Trust, thereby making Bierschwale the successor trustee of the Living Trust; the two documents were not notarized until later. At trial, Bierschwale admitted that she did not explain to Perry the effect of the documents she was signing. In July 2002, Bierschwale signed a deed prepared by Bakke which transferred "all of Perry's [remaining] real property in Uvalde County" to Bierschwale as successor trustee of the Living Trust. Also in July, Bierschwale closed Perry's bank account using the power of attorney, and transferred all of the money to another account in Bierschwale's name as "agent" for Perry. At the same time, with Bakke's assistance, Bierschwale also conveyed all of Perry's personal property and her life estate in the ranch into the Living Trust.

In August, Perry learned of Bierschwale's actions as attorney-in-fact, and promptly requested Durden to draft a revocation of the power of attorney; Perry signed the revocation at her house on August 20, 2002. The next day, Perry had a massive second stroke. Perry was hospitalized for several weeks and then transferred to a nursing home so she could receive daily speech therapy. On October 28, 2002, Perry executed a gift deed prepared by an attorney representing the Rangels which conveyed the remaining 404 acres of the Concan property to Pedro and Maria.

In November 2002, while Perry was at the nursing home, Bierschwale sued the Rangels for theft of Perry's property, including theft of cattle, and requested an injunction prohibiting them from removing any of Perry's assets. At the December hearing, Perry came from the nursing home to testify. When asked by the Rangels' counsel whether she knew why they were in court, Perry responded, "to please help us defend Pedro because everything that was happening was unjust." Bierschwale subsequently dropped the lawsuit. Despite her desire to return to her ranch, Perry remained in the nursing home until she died in May 2003.

After Perry's death, Bakke, as independent executor of Perry's estate, filed a petition requesting a "Declaration of Rights, Construction, and Legal Status" in the Real County Court. The Rangels responded by filing a petition against Bakke, individually and as independent executor of Perry's estate, and against the Youth Ranch, the Hill Country Youth Foundation, Gary Priour, Carol and Michael Priour, and Bierschwale, individually and as trustee of the Living Trust and as attorney-in-fact for Perry. The Rangels sought a declaratory judgment construing Perry's will, codicil, and gift deeds, and determining the parties' rights under those documents. The Rangels' suit also sought damages and punitive damages for constructive fraud, tortious interference with gift and inheritance, and other causes of action. Bakke, as independent executor, filed a counterclaim against the Rangels, seeking damages for breach of their fiduciary duty to Perry and to cancel the gift deed transferring the 404 acres of Concan property to the Rangels.

Prior to trial, a partial summary judgment was granted in favor of Bakke, individually and as executor of Perry's estate "save and except as to any bequests or devises under the will and/or codicil of Oma Bell Perry, Deceased and as to any acts or omissions . . . as Independent Executor . . . occurring after entry of [the summary judgment] order." Hill County Youth Foundation, Carol Priour, and Michael Priour were non-suited. The rest of the case was tried to a jury from July 18, 2005 to August 3, 2005 in Real County. The court's jury charge consisted of 37 questions. The jury returned a verdict in favor of the Rangels awarding them:

• .$793,853.52 "as appropriate compensation for Pedro and Maria Rangel, for as long as either one of them lives," as provided in the First Codicil to Perry's will;

• .$2,472.07 as reimbursement for expenses due to the Rangels;

• .$23,193 in past lost earnings and fringe benefits and $286,300 in future damages for loss of use of the residence due to the Youth Ranch's preventing the Rangels, by

breach of its fiduciary duty to Perry, from receiving an inheritance or gift that they would have otherwise received from Perry;

• .$1,213,716 in loss of inheritance or gift due to constructive fraud committed by Emily Bierschwale against the Rangels; and

• .$211,198 in attorney's fees and costs, plus an additional $25,000 in the event of an appeal to the Court of Appeals, and $37,500 in the event of an appeal to the Supreme Court of Texas.

The Rangels filed a motion for judgment on the verdict, while the other parties filed cross-motions to disregard certain jury findings, and motions for judgment notwithstanding the verdict. On January 16, 2006, the trial court rendered its final judgment, disregarding some of the jury's findings. The final judgment awarded the Rangels the following from Perry's estate:²

2 The judgment also finds that Perry's estate has insufficient assets to satisfy the bequests made in the will and codicil and the claims against the estate, and orders Bakke to sell the estate's assets, pay the claims in order of priority, and then use the remainder, if any, to satisfy the bequests made in the will and codicil. Bakke testified that the assets in Perry's estate at the time of her death consisted of: a $50,000 Certificate of Deposit; a checking account with less than $10,000; "a little cash;" and "a little piece of property in Brazoria County."

• .$793,853.52 as "appropriate compensation" for Pedro and Maria Rangel for as long as each one of them lives [awarded as a general bequest of personal property];

• .$2,472.07 as reimbursement for expenses;

• ."clear and indefeasible title to the 320 acres and 404 acres of property in Uvalde County;"

• .$25,000 in attorney's fees [with regard to the Rangels' action to clear title to the Uvalde property].

The judgment orders that the Rangels "take nothing" on their claims against the Youth Ranch, Emily Bierschwale, Gary Priour, and John Bakke, as independent executor, and disregards the jury's award of $211,198 in attorney's fees and appellate fees. Further, the judgment declares that the Rangels have no right to reside in either the old house or the new house on the Big Springs Ranch, specifically providing the Rangels "have no legal or equitable right to occupy the dwelling described in both the 1995 Deed of Gift Reserving Life Estate and the 1996 Deed of Gift Reserving Life Estate as the `house behind the carport of the main residence,'" and "no legal or equitable right to occupy the dwelling described in the First Codicil to Last Will of Oma Bell Perry as `the residence built for them,' and that the attempt by Oma Bell Perry, in her First Codicil, to ensure Plaintiffs of the right to live in such dwelling was ineffective." The Rangels' motion for new trial was denied. This appeal followed.

Analysis

In nine issues on appeal, the Rangels challenge the partial summary judgment granted in favor of Bakke, and the trial court's judgment regarding damages and declaratory relief. In a cross-appeal, Perry's estate, through Bakke as independent executor, asserts the trial court erred in granting the Rangels title to the 404 acres in Uvalde County. The Youth Ranch, Bierschwale, and Priour raise their own cross-issues which are discussed within the pertinent Rangel issues. We will address the issues as they relate to each defendant in turn: 1) Bakke; 2) Hill Country Youth Ranch; 3) Priour; and 4) Bierschwale. Finally, we will address the estate's cross-appeal.

Part I: John E. Bakke, III

Summary Judgment on the Rangels' Claim for Tortious Interference with Inheritance or Gift

The Rangels' original petition asserted eleven causes of action against Bakke, both individually and as the independent executor of the estate of Oma Bell Perry.³ In response, Bakke filed no-evidence and traditional motions for summary judgment as to all eleven causes of action; the Rangels filed a response in opposition and 51 supporting exhibits. The trial court granted summary judgment for Bakke without specifying the grounds.⁴ On appeal, the Rangels only challenge the no-evidence summary judgment entered on the claim for tortious interference with inheritance rights by Bakke in his individual capacity.

3 The Rangels' fourth amended petition alleged the following causes of action: fraud; constructive fraud; injunctive relief; contempt of court; conversion; interference with inheritance rights and rights under gift deeds; breach of contract; intentional infliction of emotional distress; quantum meruit; breach of fiduciary duties; and conspiracy.

4 The summary judgment ordered that the Rangels take nothing against Bakke, Individually and as Independent Executor of the Estate of Oma Bell Perry, Deceased, "save and except as to any bequests or devises under the will and/or codicil of Oma Bell Perry, Deceased and as to any acts or omissions of John E. Bakke, III as Independent Executor of the Estate of Oma Bell Perry, Deceased occurring after entry of this order."

We review the trial court's judgment applying the well-established standards for reviewing no-evidence summary judgments. See Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 252 (Tex. 2002). We consider the evidence in the light most favorable to the non-movant in a no-evidence motion. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003). Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard as applied in reviewing a directed verdict. Id.; Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied).

Bakke's no-evidence motion for summary judgment alleged that there was no evidence that any alleged tortious conduct by Bakke prevented the Rangels from receiving any inheritance or gift, or caused the Rangels to lose any inheritance or gift that they would have otherwise received. The burden then shifted to the Rangels to produce more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. Bakke initially contends that the Rangels' response "failed to direct the trial court to any evidence of a specific gift or inheritance they lost because of Bakke's tortious conduct and that the trial court was not required to sift through the hundreds of pages of summary judgment evidence with the hope that a material issue of fact might be stumbled upon." In the alternative, Bakke argues that the response fails to raise a genuine issue of material fact on the challenged elements.

While the Rangels' response could have been more specific in identifying their claimed loss, we cannot say the response was wholly inadequate under Rule 166a(i). The Rangels were not required to "marshal" their proof, but only to "point out evidence that raises a fact issue on the challenged elements." Tex. R. Civ. P. 166a(i). Here, an examination of the entire response reveals that the Rangels did identify at least one inheritance which they claim they did not receive. See Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193, 207-08 (Tex. 2002) (examining entire response, not just section pertaining to challenged claim, to determine whether summary judgment was properly granted). In a separate section entitled "Facts," the Rangels specify that under the 2001 codicil to Perry's will drafted by Bakke, Perry stated that, "I have already provided my friends and faithful employees, Pedro Rangel Trujillo and his wife, Maria, are to be permitted to occupy the residence built for them as long as either one of them lives."⁵ This statement identifies at least one inheritance that the Rangels did not receive from Perry — the lifetime right to reside in the new residence built on property owned by the Youth Ranch. Although the summary judgment response was not a model of thoroughness, we conclude it met the minimum requirements of Rule 166a(i).

5 The codicil was properly before the trial court as part of the Rangels' summary judgment evidence (Exhibit 11).

Having decided that the summary judgment response was sufficient to meet the requirements of Rule 166a(i), we now examine whether the Rangels raised a fact issue on all the essential elements of their claim for tortious interference with inheritance or gift. The cause of action for tortious interference with inheritance or gift was recognized in King v. Acker, 725 S.W.2d 750, 754 (Tex.App.-Houston [1st Dist.] 1987, no writ). The Restatement of Torts defines the tort as: "One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift." Restatement (Second) of Torts, § 774B (1979).

The Rangels allege that the "tortious means" Bakke used to prevent their receipt of an inheritance from Perry was Bakke's breach of his fiduciary duty to Perry through his "conflicting dual representation of Ms. Perry and Hill Country Youth Ranch." Further, the Rangels alleged that "[a]s an expert in estate planning, [Bakke] had to know that the documents he drafted for Ms. Perry to execute, including the [Charitable Unitrust], the Living Trust, and the Power of Attorney as exercised by Bierschwale, were calculated to remove from Ms. Perry's ownership and from her estate the properties and assets needed to fulfill her intentions toward the Rangels."

In support of their allegations, the Rangels cite to the affidavit of James McCormack, an expert on legal ethics, professional responsibility, and legal malpractice, to prove that Bakke breached a fiduciary duty to Perry. McCormack states that as Perry's attorney, Bakke owed her a fiduciary duty, which he violated when he represented Perry while also representing the Youth Ranch because Perry's interests were materially and directly adverse to those of the Youth Ranch. McCormack states that the "breach of fiduciary duty was clear and serious in that Mr. Bakke did not act loyally to Ms. Perry nor in her best interest in his representation of her. His conflict of interest and breach of fiduciary duty directly benefitted the Hill Country Youth Ranch and Mr. Bakke's personal interests (including his various roles in the Hill Country Youth Ranch) to the detriment of Ms. Perry's financial and personal interests." Accordingly, we conclude the Rangels presented evidence that raised a genuine issue of material fact on the element of tortious means.

Bakke next argues that the Rangels' response fails to point out any evidence of causation. We disagree. To prove causation, the Rangels needed to show that Bakke's conduct was a "substantial factor" in bringing about the injuries to the Rangels. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). In reviewing the entire summary judgment record in favor of the Rangels as non-movants, we find some evidence to support the Rangels' allegation that Bakke's tortious conduct prevented them from receiving an inheritance from Perry. Exhibit 11 to the Rangels' response is the "First Codicil to Last Will of Oma Bell Perry" drafted by Bakke and signed by Perry on August 15, 2001. The codicil states in relevant part that, " I have already provided that my friends and faithful employees, Pedro Rangel Trujillo and his wife, Maria, are to be permitted to occupy the residence built for them as long as either one of them lives." (emphasis added). This provision, however, was ineffective, because Perry had already deeded the land on which the new residence was built to the Youth Ranch, and, having retained only a life estate, she had no authority to grant the Rangels the right to reside there after her death. Since Bakke had drafted the 1995 and 1996 gift deeds from Perry to the Youth Ranch and knew she had only retained a life estate, he would have known that this provision in the codicil was a nullity. Further, the codicil's statement that Perry "had already provided" the Rangels with the right to reside there was actually false, as neither of the gift deeds made any reference to a "residence built for" the Rangels; the gift deeds only granted them the right to reside in the old residence behind the carport of the main residence.

Additionally, in exhibit 50 to the Rangels' response, McCormack states on his deposition signature page that, "[a]n independent attorney would have been alert to conflicts between [Perry's] codicil and her other estate related documents." McCormack also states that although it would be speculative for him to assume whether Perry would have done anything different upon the advice of other counsel, "an independent attorney could have advised her how to make her codicil work with the language of the charitable unitrust or make her estate planning documents consistent with each other and with her intentions."

We conclude this evidence is sufficient to raise a fact issue as to whether Bakke intentionally prevented the Rangels from receiving an inheritance from Perry. As previously discussed, the Rangels' response identified at least one inheritance, the lifetime right to live in the residence built for them, that they did not receive from Perry due to Bakke's tortious conduct. Again, the Rangels were not required to marshal all their proof, but only to "point out evidence that raises a fact issue on the challenged elements." Tex. R. Civ. P. 166a(i); Trejo v. Laredo Nat'l Bank, 185 S.W.3d 43, 46-47 (Tex.App. — San Antonio 2005, no pet.). We conclude they did so. Accordingly, the judgment of the trial court is reversed as to the granting of summary judgment in favor of Bakke on this claim, and the cause is remanded to the trial court for further proceedings.

Part II: Hill Country Youth Ranch

In their second, third, and fourth issues, the Rangels assert the trial court erred in disregarding various jury findings and granting, in part, the motion for judgment notwithstanding the verdict ("JNOV") filed by the Youth Ranch. The related cross-issues raised by the Youth Ranch are incorporated into the relevant Rangel issue. No party argues on appeal that the submission of any particular instruction or question in the jury charge was error.

A trial court may disregard a jury finding and enter a judgment notwithstanding the verdict if the finding is immaterial, or if there is no evidence to support the finding. Spencer v. Eagle Star Ins. Co. of America, 876 S.W.2d 154, 157 (Tex. 1994). A jury finding is "immaterial" when it should not have been submitted to the jury, or was properly submitted but has been rendered immaterial by other findings. Spencer, 876 S.W.2d at 157. A question which calls for a finding beyond the province of the jury, such as on a question of law, may be deemed immaterial. Id. A JNOV should be entered based on "no evidence" when the evidence offered to prove a vital fact is not more than a scintilla. City of Keller v. Wilson, 168 S.W.3d 802, 810, 823 (Tex. 2005); Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003) (per curiam) (trial court may grant JNOV if there is no evidence to support one or more jury findings on issues necessary to liability).

We review a JNOV under a legal sufficiency standard, viewing the evidence and inferences in the light most favorable to the jury's finding, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d at 807, 823; Tabrizi v. Daz-Rez Corp., 153 S.W.3d 63, 66 (Tex.App.-San Antonio 2004, no pet.). We will sustain the granting of a JNOV based on "no evidence" when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the trial court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. City of Keller, 168 S.W.3d at 810; Tabrizi, 153 S.W.3d at 66. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence. USAA v. Pigott, 154 S.W.3d 625, 632 (Tex.App. — San Antonio 2003, no pet.); Ulico Cas. Co. v. Allied Pilots Ass'n, 187 S.W.3d 91, 98 (Tex.App. — Forth Worth 2005, pet. granted) ("When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence."). Finally, the rules regarding JNOV apply to damage awards, and the granting of a JNOV is proper if there is no evidence to support the jury's damages finding and if the evidence establishes the trial court's damage award as a matter of law. Ulico, 187 S.W.3d at 102 (citing Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996)).

A. Breach of the 1995 and 1996 Gift Deeds — Retirement Center

In their fourth issue, the Rangels assert the trial court erred in disregarding the jury's answer to Question No. 21 finding that the Youth Ranch breached the gift deeds, and in granting JNOV in favor of the Youth Ranch; the Rangels assert the court further erred in failing to disregard the jury's award of zero damages for the Youth Ranch's breach in failing to build the retirement center and provide free room and board. Alternatively, the Rangels contend the jury's finding of zero damages is against the great weight and preponderance of the evidence.

With respect to the Rangels' claim that the Youth Ranch breached the gift deeds, the jury found:

Question No. 21: "Yes" — The Youth Ranch failed to comply with the terms of the 1995 or 1996 gift deeds that were in favor of Pedro and Maria Rangel; and

Question No. 22: What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Pedro and Maria Rangel for their damages, if any, that resulted from Hill Country Youth Ranch's failure to comply with the terms of the 1995 or 1996 Gift Deeds?

Consider the following element of damages, if any, and none other:

The fair rental value of the free use of all the retirement home facilities which includes room and board.

past damages: $0

future damages: $0

The trial court disregarded the jury's finding of a breach by the Youth Ranch, denied the Rangels' motion for JNOV as to the finding of zero damages, and entered a take-nothing judgment in favor of the Youth Ranch on the Rangels' breach of contract claim.

1. Evidence of Hill Country Youth Ranch's Breach of Gift Deeds [Retirement Center]

The relevant provisions of the 1995 and 1996 gift deeds provided that the ranch "shall be used for construction, maintenance and operation of a non-sectarian school and home for needy children and, to the extent funds are available, a retirement center . . .," and that "Pedro and his wife will have a right to live in the house they now occupy so long as they are employed by [Perry]. If they continue to work there [on the ranch] until their retirement, they will have free use of all the retirement home facilities which includes room and board." We begin by evaluating the record to determine whether there is any evidence to support the jury's finding that the Youth Ranch breached the 1995 and 1996 gift deeds⁶ by failing to construct a retirement center on the ranch and provide the Rangels with free use of the retirement facilities, including room and board.⁷

6 Even though the jury was asked to determine whether the Youth Ranch breached either the 1995 or the 1996 gift deed, the relevant provisions regarding the construction of a retirement center and the Rangels' free use of the retirement facilities contained in paragraphs 7 and 13 are the same in both gift deeds.

7 Both Bakke and Priour testified the Youth Ranch had not provided the Rangels with "room and board," i.e., food or money, since Perry's death, but conceded that Perry would have wanted the Youth Ranch to ensure the Rangels had food.

In its cross-issue, the Youth Ranch argues that "as a matter of law" it did not breach either gift deed because the evidence showed that sufficient funds were not available to build a retirement center, and the Rangels are no longer employed by Perry so they have no right under the gift deeds to reside on the ranch.

At trial, it was undisputed that no retirement center had been built on the ranch, only several individual "grandparents cottages." Priour testified that he signed the gift deeds on behalf of the Youth Ranch and accepted the terms. Bakke testified that, by signing and accepting the terms of the gift deeds, the Youth Ranch "accepted the gift [the ranch] . . . subject to the restrictions;" the Youth Ranch's promise to fulfill the deed restrictions was the consideration for Perry's conveyance of the 6,991 acres; and there would be a "failure of consideration" if the Youth Ranch did not live up to the promises it made in the deeds. Bakke further testified that the phrase "to the extent funds are available" was added to the retirement center provision in paragraph 7 of the deeds as a "change insisted on by the Youth Ranch." Priour testified that the Youth Ranch added the language because it did not want to "over commit." He had ongoing discussions with Perry regarding how to fulfill her dream of involving senior citizens with the children, and informed her that the Youth Ranch could not operate a "medical nursing home" because it did not have a license. Priour stated that Perry ultimately agreed to the grandparents cottages as a solution.

When asked whether the Youth Ranch had sufficient funds to build a retirement center, Bakke replied he could not speak for the Board of Directors and "that question has not been addressed by the Board." He further stated that because the Rangels had their own new home, the retirement center project was "not focused on" by the Youth Ranch. Priour testified that the Youth Ranch's tax return for 2002 showed about $15 million in net assets, and total revenue of about $5.2 million. Priour stated, however, that those funds were "not available" for constructing a retirement center because all of the Youth Ranch's funds are restricted by the terms of the particular grant or charitable gift, and by the terms of its charter which is "to educate kids." Priour conceded that Youth Ranch funds have been "available" and have been used to build the children's school, a library, a big show barn, and a lot of cottages for the children and grandparents; however, he explained that these buildings were constructed with grants or gifts specifically designated for those purposes. Priour further explained that the funds the Youth Ranch receives from the Hill Country Youth Ranch Foundation are restricted to "operation" of the children's home and cannot be used to construct buildings; in addition, the Youth Ranch receives State funds for operating the school and must account for their specific use. Priour testified that the Youth Ranch has not solicited funds to build a retirement center because: (1) the Rangels have their own home; and (2) the Youth Ranch is "not licensed to operate a nursing home" and he had explained that to Perry.

In their reply brief, the Rangels assert that the Youth Ranch's own expert testified that it had "unrestricted funds of more than $2.6 million and annual net income of more than $1 million." The citation to the record provided by the Rangels does not support that assertion. In fact, the Youth Ranch's expert, Michael Douville, a certified public accountant, testified that the "unrestricted" funds of $2,418,073 shown on the 2002 tax return were not in reality unrestricted as to their availability for use; the use of the term "unrestricted" on the tax form has a particular accounting meaning that is different from the term's common meaning. The Rangels do not cite us to any other evidence showing that the Youth Ranch had available unrestricted funds with which to construct a retirement center, and we have found none in our own review of the record.

Based on the qualifier in the gift deeds that the Youth Ranch was obligated to build the retirement center only "to the extent funds are available," and the evidence that use of the Youth Ranch's funds was restricted and sufficient unrestricted funds were not available for constructing a retirement center, we conclude the trial court did not err in disregarding the jury's finding that the Youth Ranch breached the gift deeds; on this record, there is no evidence that the Youth Ranch breached the gift deeds by failing to construct a retirement center. Moreover, based on the clear language of the gift deeds, the provision of free room and board to the Rangels was a result of their "free use of all the retirement home facilities; "since the retirement home was not built, the Youth Ranch had no obligation under the gift deeds to provide free room and board to the Rangels.

2. Finding of Zero Damages for Hill Country Youth Ranch's Breach

Because we have concluded there was no evidence that the Youth Ranch had available unrestricted funds to build a retirement center, and thus no evidence that it breached the gift deeds, we need not address whether the trial court erred in refusing to disregard the jury's finding that the Rangels suffered no damages as a result of the Youth Ranch's breach in failing to build the retirement center. We affirm the trial court's entry of a take-nothing judgment in favor of the Youth Ranch on the Rangels' claim for breach of the gift deeds.

3. Rangels' Recovery of Attorney's Fees from Hill Country Youth Ranch

In their ninth issue, the Rangels argue the trial court erred in granting the Youth Ranch's motion for JNOV and disregarding the jury's award of attorney's fees in its response to Question No. 32. The jury awarded the following attorney's fees to the Rangels:

For preparation and trial: $176,131.12

Costs: $ 35,067.18

Court of Appeals: $ 25,000.00

Supreme Court: $ 37,500.00

On appeal, the Rangels contend they are entitled to recover their reasonable attorney's fees "as a matter of law" under section 38.001(8) of the Civil Practice and Remedies Code because of "their successful suit for breach of contract" against the Youth Ranch. Tex. Civ. Prac. Rem. Code Ann. § 38.001(8) (Vernon 1997) (providing that a person may recover reasonable attorney's fees, in addition to the amount of a valid claim and costs, if the claim is for breach of an oral or written contract). As discussed above, the jury found that the Youth Ranch breached the gift deeds, but it awarded no damages. The trial court subsequently disregarded the jury's finding of a breach, and we have concluded the court acted properly because there was no evidence that the Youth Ranch breached the gift deeds. To recover attorney's fees under section 38.001, a party must (1) prevail on a cause of action for which attorney's fees are recoverable, and (2) recover damages. Green Intern., Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997); State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex. 1995). Because the Rangels did not recover any damages on their claim for breach of the gift deeds, and in fact did not ultimately prevail on that claim, they are not entitled to recover their attorney's fees under section 38.001(8). It is apparent from the judgment itself that the trial court disregarded the jury's award of attorney's fees because it was rendered immaterial by the entry of a "take nothing" judgment in favor of the Youth Ranch on the breach of contract claim, not because there was no evidence to support the fee amounts awarded. See Spencer, 876 S.W.2d at 157; Green, 951 S.W.2d at 389-90 (where parties do not object to failure to segregate attorney's fees as to specific claims, court may disregard jury finding awarding fees only if it is unsupported by the evidence or is immaterial). The Rangels' issue is overruled.

B. Tortious Interference with Gift or Inheritance ⁸

8 The Youth Ranch raises a cross-issue in which it argues this court should not recognize a "new" cause of action for tortious interference with a gift or inheritance. Because we are affirming the take-nothing judgment entered in favor of the Youth Ranch on this claim, we need not address this cross-issue.

In their second issue, the Rangels argue the trial court erred in disregarding the jury's answers to Question Nos. 3(a) and 3(c) regarding the value of the Rangels' past lost earnings and fringe benefits, and their future loss of the new residence, and in granting JNOV in favor of the Youth Ranch. With respect to the Rangels' claim that the Youth Ranch tortiously interfered with their receipt of a gift or inheritance from Perry, the jury made the following findings:

Question No. 1: "Yes" — a relationship of trust and confidence existed between Hill Country Youth Ranch and Perry;

Question No. 2: "Yes" — by breaching its fiduciary duty to Perry, Hill Country Youth Ranch prevented Pedro and Maria Rangel from receiving a gift or inheritance from Perry they would have otherwise received;

Question No. 3: What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Pedro and Maria Rangel for their damages, if any, that were proximately caused by such conduct? Consider the following elements of damages, if any, and none other:

(a) past damages related to lost earnings and fringe benefits: $23,193

(b) damages for loss of inheritance or gift: $0

(c) future damages related to loss of benefits of residence use: $286,300

(d) damages for past physical pain and mental anguish sustained by Pedro: $0

(e) damages for past physical pain and mental anguish sustained by Maria: $0

The trial court disregarded the jury's damage awards in Question No. 3(a) and (c) based on the Youth Ranch's motion for JNOV, but denied its motion for JNOV as "moot" with respect to the jury's finding of a fiduciary duty and breach of that duty in Question Nos. 1 and 2; the court entered a take-nothing judgment on this claim in favor of the Youth Ranch. On appeal, the Youth Ranch raises a cross-issue challenging the jury's findings in Question Nos. 1 and 2, asserting that "as a matter of law" the Youth Ranch did not owe Perry a fiduciary duty with respect to any inheritance or gift intended for the Rangels, and even if it had such a duty, it did not breach it. Because we are affirming the trial court's entry of a take-nothing judgment in favor of the Youth Ranch on this claim, we need not address this cross-issue.

On appeal, the Rangels argue the entry of a "take nothing" judgment in favor of the Youth Ranch is illogical based on the jury's finding that the Youth Ranch's breach of fiduciary duty prevented them from receiving a gift or inheritance, and assert the jury's damage awards were supported by the evidence. We will first analyze whether JNOV was properly granted on the damages awards, as that may be dispositive of this issue on appeal.

1. Evidence in Support of Finding of Damages for Past Lost Earnings/Fringe Benefits

We begin by evaluating the record to determine whether there was any evidence to support the jury's finding that the Youth Ranch's breach of its fiduciary duty to Perry prevented the Rangels from receiving an inheritance⁹ of $23,193 in past lost earnings and fringe benefits. The jury was instructed that the conduct of the Youth Ranch included the conduct of Bakke and Priour if they were acting with the Youth Ranch's authority or apparent authority, or in the course and scope of employment, or in furtherance of Youth Ranch business.

9 An "inheritance" to the Rangels arose out of Perry's First Codicil, which stated in relevant part that the Rangels should be employed and receive "an appropriate amount of compensation" as long as either one lived.

Bakke, who was Chairman of the Board of Directors and President of the Youth Ranch at the time of trial, conceded at trial that his deposition testimony and discovery responses showed that he began acting as the Youth Ranch's attorney in 1995, and he began representing Perry on her estate matters in 1996. Bakke admitted that he did not stop representing the Youth Ranch when he became Perry's attorney, and continued to represent both until Perry's death. Bakke became a director of the Youth Ranch in April 1997, was elected Treasurer in March 1998, and became President in May 2003. Bakke drafted the 1996 gift deed from Perry to the Youth Ranch, while representing both sides to the transaction. Bakke stated that he incorporated most of Priour's suggested changes into Perry's restrictions in the gift deeds in order "to arrive at a deed acceptable to the grantee [the Youth Ranch]." In addition to drafting other estate planning documents for Perry, in 2001 Bakke drafted the First Codicil to Perry's will which provided for "appropriate compensation" for the Rangels during their lifetimes. Bakke testified that the term "appropriate compensation" in the codicil meant the Rangels should be paid at their present rate of compensation, even if Pedro could no longer work. Bakke stated he was aware of Perry's desire and intention to "provide for" the Rangels for the rest of their lives.

Priour, who was the founder and Executive Director of the Youth Ranch, admitted that he knew of Perry's desire and intent to continue employing the Rangels on the ranch for life, and to provide an income for them after their retirement. Maria Rangel testified that after Perry went into the nursing home, the Youth Ranch effectively "shut down" the ranch operation by closing and locking the pastures, taking all the livestock feed, and selling the majority of the remaining cattle. Maria stated that on November 12, 2002, a Youth Ranch employee posted a note warning "stop feeding the cows."¹⁰

10 Maria also testified that the Youth Ranch employees took food out of their refrigerator on the breezeway of the new residence, and turned off the electricity to that refrigerator; no one from the Youth Ranch reimbursed them for the lost food. In addition, she stated that "someone" on the ranch had contaminated their water supply which came from the Frio River.

Priour first testified that the Youth Ranch only sold Perry's cattle in the 2002 annual sale, and that it was her estate that sold the rest of the cattle. During his later testimony, Priour stated that the Youth Ranch hired a consultant from Texas A M University in the fall of 2002 to assess the cattle operation and make recommendations; the Youth Ranch then sold 56 of the remaining 120 cattle because they were in poor condition. Priour stated he did not know about the "don't feed hay" sign, but he had been told by the Youth Ranch employees that "some hay was missing." Priour testified that after Perry died the Youth Ranch did lock the pasture gates based on some hunters' complaints about loss of game and for purposes of cattle control; keys to the gates were not given to Pedro. Bakke testified that he was not aware that the Youth Ranch had sold most of the cattle after Perry went into the nursing home.

Bierschwale testified that she was the person who was paying the Rangels' salaries and reimbursing their expenses out of the Living Trust's funds. Bierschwale did not pay the Rangels' salaries in November and December 2002, she then paid them three months' salary in March 2003 when the hunters paid their lease. Bierschwale acknowledged that under the temporary injunction entered in December 2002 she was obligated to continue paying the Rangels in the same manner as before Perry entered the nursing home. She also conceded that there was $15,000 in Perry's Frio Bank account in November 2002, and that she wrote a check on that account in November to retain an attorney to file suit against the Rangels. In April 2003, Bierschwale sent a letter to the Rangels informing them that they were "now employed by the Living Trust" and the trust would no longer reimburse their expenses. Bierschwale testified that there were insufficient funds in the trust account and Perry needed the money that was there for her own expenses at the nursing home. Bierschwale conceded, however, that Perry's accounts had approximately $79,000 in them at that time.

Bakke testified that in his capacity as executor of Perry's estate, he did not pay any living expenses to the Rangels because his only duty was to pay "claims" against the estate; no proper claim for the Rangels' wages was ever filed. Bakke stated that the Rangels' salaries were approximately $4,000 per month.

Maria Rangel testified that she and Pedro stopped receiving a salary on May 5, 2003. At that time, Perry had been paying Maria a monthly salary of $1,200, or $14,400 gross per year; Pedro was receiving $1,500 per month, or $18,000 gross per year. In addition, Perry provided the Rangels with "fringe benefits" which included: paying for their groceries, utilities, vehicle insurance, gasoline and repairs, and medical bills; providing two weeks' paid vacation and Christmas leave; and providing a rent-free home on the ranch. Perry had continued paying Pedro his monthly salary even when he could not work due to his illness, based on his many years of service to her.

The Rangels' expert, Janet Stigent-Burns, a certified public accountant, testified in accordance with her report (which was admitted as plaintiffs' exhibit no. 105) that she interpreted the phrase "an appropriate amount of compensation" used in the First Codicil to mean "salaries plus benefits." Burns stated the Rangels' combined average salary from 2000 to 2002 was $29,697, or $2,475 per month, and their fringe benefits averaged $1,700 per month, for a combined total monthly income of $4,175. Burns calculated the Rangels' past damages for lost earnings and fringe benefits for 22 months from June 1, 2003 (based on the Rangels' salary stopping in May 2003) to April 1, 2005, the date of her report; she concluded that the Rangels' total past lost earnings and fringe benefits was $91,844 ($4,175 per month for 22 months).

The jury's award of $23,193 in past lost earnings and fringe benefits is clearly within the range of damages evidence presented at trial. See Gulf States Utilities Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002). In addition, there is more than a scintilla of evidence to support the jury's finding that the Youth Ranch breached its fiduciary duty to Perry by preventing the Rangels from continuing to perform their ranch duties, to wit: after Perry went into the nursing home, the Youth Ranch locked the pasture gates and did not give Pedro a key, took the feed, and sold half of the cattle thereby preventing the Rangels from continuing to run the cattle ranch. However, there was no evidence that the Youth Ranch was responsible for paying the Rangels "appropriate compensation" for life, and no evidence that its breach prevented the Rangels from receiving that inheritance under the codicil. Instead, it was Bierschwale, as trustee of the Living Trust, who was responsible for paying the Rangels' salaries and reimbursing their expenses, and she stated that she stopped paying because there were insufficient funds in the trust account, not because the Youth Ranch shut down the cattle operation. Accordingly, we conclude the trial court did not err in disregarding the jury's award of $23,193 in damages against the Youth Ranch in Question No. 3(a).

2. Evidence in Support of Finding of Damages for Future Loss of Residence

Next, we must determine whether there was any evidence to support the jury's finding that the Youth Ranch's breach of its fiduciary duty to Perry prevented the Rangels from receiving a gift or inheritance, i.e., use of the new residence,¹¹ and resulted in future damages of $286,300 for loss of use of the new residence. In evaluating the Youth Ranch's conduct, we again look to the conduct of Bakke and Priour to the extent they were acting with authority, within the scope of employment, or in furtherance of Youth Ranch business.

11 An "inheritance" to the Rangels arises out of the First Codicil, which states in relevant part that Perry had "already provided that [the Rangels] are to be permitted to occupy the residence built for them as long as either one of them lives." A "gift" arises from the 1995 and 1996 gift deeds which provided that the Rangels had the right to reside on the ranch "in the house [behind the carport of the main residence] so long as they are employed by [Perry]." It is undisputed that the Rangels ceased being employed by Perry on the date of her death; therefore, as a matter of law they have no right under the 1995 or 1996 gift deeds to reside in the old house behind the carport. Accordingly, our analysis will focus on whether the Youth Ranch's actions have deprived the Rangels of an inheritance right to live in the new residence that Perry built for them.

At trial, Bakke admitted that he knew of Perry's desire and intention to "provide for" the Rangels, both before and after her death, by allowing them to live on the ranch for their lifetimes. Bakke testified that the means by which he attempted to carry out Perry's wishes was by drafting her will and the First Codicil; he conceded, however, that Perry's will provides nothing for the Rangels, except forgiveness of any debt, and that the Youth Ranch will receive the remainder of Perry's assets after the three specific charitable bequests are made. Bakke also admitted that he was a director of the Youth Ranch, and also advised it on legal matters, at the time he drafted Perry's will. Bakke testified that Perry's purpose in making the codicil was to "make sure Pedro and Maria were `taken care of' in her terms." However, Bakke conceded at trial that he did not explain to Perry that she had not in fact "already provided" that the Rangels had the right to reside in the new house for life, as the codicil stated, or that there was a potential problem with granting the Rangels a right to occupy the new residence beyond her lifetime because the ranch had been deeded to the Youth Ranch with only a life estate in the ranch retained for Perry. Instead, Bakke prepared the codicil which incorrectly recited that Perry "had already provided" the Rangels with the right to reside in the house built for them throughout their lives. Finally, Bakke conceded at trial that the Rangels are "beneficiaries" under the codicil, "to some extent."

Maria Rangel testified that, as of the date of trial, no one from the Youth Ranch had asked them to vacate the new residence in which they are currently living; however, she stated they had been harassed by Youth Ranch employees. Priour testified that he was "fully aware" of the new house that Perry built the Rangels and never objected that she was building it on the Youth Ranch's property. Priour stated the Youth Ranch has not asked the Rangels to leave. When asked whether the Rangels have the right to live in the new house, Priour replied that he "didn't know if they have a legal right, but we haven't bothered them." Notwithstanding Priour's trial testimony, we note that, as a party in this litigation, the Youth Ranch has asserted that Perry only had a life estate in the ranch, and thus could not legally convey, give or bequest to the Rangels a "right" beyond her lifetime, to use the new residence built on land that had already been deeded to the Youth Ranch. Therefore, despite its awareness through its agents, Bakke and Priour, of Perry's desire that the Rangels live on the ranch for the rest of their lives and Perry's construction of a new home specifically for that purpose, the Youth Ranch has taken the legal position, at least in the pleadings filed in the trial court and now on appeal, that the Rangels are not entitled to continue living in the new residence Perry built for them.

As for evidence of future damages for loss of the benefits of residing in the new house, only Burns and Priour provided any testimony relevant to valuation of such future damages, if any. Burns testified that the future damages related to the Rangels' loss of using the new residence from April 1, 2005 (the date of her expert report) forward would be calculated based on the following formula:

"Monthly Fair Rental Value x 195.4 (discount rate for present value) x 33.6 years (Maria's life expectancy)." Burns used Maria's life expectancy because it was longer than Pedro's. Burns did not, however, cite a dollar amount for the "monthly fair rental value" of the new residence, and therefore did not testify to a dollar amount of future damages for loss of use of the residence. Priour testified that generally, construction costs in the area ranged from $75 to $90 per square foot, "depending on the contractors and materials." Upon being provided with the square footage of the Rangels' new residence, Priour testified that based on the 2,356 square footage, his experience with construction costs per square foot in the area, and his knowledge of the materials used in the home, the "fair value" of the Rangels' new residence was between $141,360, at $60 per square foot, and $153,140, at $65 per square foot. Priour qualified his opinion by noting that he was not an appraiser. Priour further stated that he could not estimate the "rental value" of the home.

Assuming, without deciding, that there is sufficient evidence to support the jury's finding that the Youth Ranch breached its fiduciary duty to Perry and prevented the Rangels from receiving an inheritance right to live in the new house, we conclude there is no evidence to support the jury's calculation of $286,300 in future damages for loss of use of the new residence. At most, Burns supplied a formula for calculating the future damages; however, without a dollar figure for the monthly fair rental value, the formula cannot be applied.¹² In addition, Priour supplied his estimate of the current "fair value" of the new residence, based on costs of construction, as between $141,360 and $153,140. Therefore, because there was no evidence presented at trial to support the jury's award of $286,300 in future damages for loss of the new residence, we hold the trial court did not err in disregarding the jury's damages award. We overrule the Rangels' issue on appeal, and affirm the trial court's entry of a take-nothing judgment in favor of the Youth Ranch on this claim.

12 The Rangels raise an issue on appeal challenging the exclusion of their appraisal expert's testimony; however, as discussed below, we overrule that issue.

3. Exclusion of Appraisal Expert Testimony

In their seventh issue, the Rangels argue the trial court erred in excluding the testimony and evidence of their appraisal witness. An agreed docket control order required that the plaintiffs designate their testifying experts, and file an expert report for each testifying expert, by April 11, 2005, unless good cause was shown for late designation. The Rangels timely designated Dub Suttle as an expert witness to testify as to "the valuation of the Rangels' life estate in the Big Springs Ranch, the monthly rental value of that property, and to other issues involved with the economic damages to the plaintiffs incident to the Big Springs Ranch life estate." However, the Rangels did not timely serve Suttle's report because Suttle had not yet completed it; the report was furnished to defense counsel on May 6, 2005. On May 19, the Rangels filed their motion to extend the time to file Suttle's expert report; the Youth Ranch did not object to the request, but Bakke objected on the grounds that unavailability of the report and lack of any surprise or prejudice did not amount to good cause. The Rangels' counsel then filed an affidavit in which he explained that he became aware of the need for a separate expert to value the Rangels' life estate "around" March 14, 2005; after contacting Suttle, counsel was under the impression that Suttle would timely complete his report, but Pedro's hospitalization and a language barrier caused the report to be delayed. The Rangels argued that due diligence was used in attempting to meet the filing deadline and that the defendants were afforded ample time, 73 days before trial, to respond to the report. The trial court denied the Rangels' motion for extension, and Suttle was not permitted to testify at trial.

On appeal, the Rangels argue that the trial court abused its discretion in denying their motion for extension of time to file Suttle's expert report because good cause existed for the late filing. Exclusion of a witness for a party's failure to timely or properly designate the witness is a sanction available to the trial court. Tex. R. Civ. P. 193.6. The exclusion of expert testimony is reviewed for an abuse of discretion. McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003); Mares v. Ford Motor Co., 53 S.W.3d 416, 419 (Tex.App. — San Antonio 2001, no pet.).

The Rangels argue that good cause existed for filing the late report because it was not determined until shortly before the deadline for expert disclosure that an appraisal witness, Suttle, would be necessary to furnish the foundation for their damages expert with respect to future loss of use of the new residence. Although the Rangels timely designated Suttle, he was not able to complete his report before the deadline. The Rangels contend that the defense was not unfairly surprised or prejudiced by the late report because the general subject matter of Suttle's testimony had been disclosed, the report was furnished 73 days before trial, and Suttle was offered for deposition. The good cause exception permits a trial court to excuse a party's failure to comply with discovery in difficult or impossible circumstances. Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 914 (Tex. 1992). The trial court has discretion to determine whether the offering party has met his burden of showing good cause to admit the testimony. Id. The following factors, standing alone, do not constitute good cause: inadvertence of counsel, lack of surprise, or uniqueness of the excluded evidence. Id. at 915.

Here, the agreed docket control order provided that experts not identified, and for whom reports had not been submitted, by April 11, 2005 would not be permitted to testify absent a showing of good cause. The Rangels' only argument to the trial court was that Suttle did not have time to complete his report before the deadline. However, the record demonstrates that the need for Suttle's testimony was discovered approximately one month before the designation deadline, and that Suttle was working on his report during that time and could have submitted a draft report on or before the April 11 deadline, and amended it later. Given the wide latitude afforded to the trial court in this situation, we cannot conclude that the trial court abused its discretion when it struck Suttle as a sanction for the Rangels' failure to timely serve his report. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) (trial court abuses its discretion when it acts "without reference to any guiding rules and principles"). Accordingly, the Rangels' seventh issue is overruled. C. Estoppel or Quasi-Estoppel Regarding Rangels' Right to Reside on the Ranch

In their fifth issue, the Rangels assert the trial court erred in holding they have no legal or equitable right to reside on the ranch, either in the old house or the new house, because quasi-estoppel or estoppel by contract was established by the evidence and the jury's verdict.¹³ In its judgment, the trial court ruled as a matter of law that the Rangels have "no legal or equitable right" to reside in the old house behind the carport of the main residence as described in the gift deeds, or to reside in the new house built for them by Perry as described in the codicil. The trial court further found that Perry's attempt in the codicil to ensure the Rangels had the right to live in the new house for the rest of their lives was "ineffective."

13 The Rangels concede that if they prevail on this issue, and obtain an equitable or legal right to reside on the ranch, it would constitute a double recovery with any damages assessed for the Youth Ranch's breach in failing to build the retirement center. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991) (a "double recovery" occurs when a plaintiff obtains more than one recovery for the same injury or loss); JHC Ventures, L.P. v. Fast Trucking, Inc., 94 S.W.3d 762, 774 (Tex.App.-San Antonio 2002, no pet.) (party is entitled to seek damages on alternative theories, but is not entitled to recover on both theories and must elect its remedy). However, as discussed supra, we are affirming the trial court's take-nothing judgment on the Rangels' claim for breach of the gift deeds; therefore, no double recovery situation exists.

The doctrine of quasi-estoppel applies when it would be unconscionable to allow a person to maintain a position inconsistent with one in which he acquiesced or accepted a benefit. Lopez v. Munoz, Hockema Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). Misrepresentation by one party, and detrimental reliance by the other, are not necessary elements of quasi-estoppel. Id.; Vessels v. Anschutz Corp., 823 S.W.2d 762, 765 (Tex.App.-Texarkana 1992, writ denied). The person accepting the benefits must have knowledge of all the material facts in order for estoppel to ensue. Frazier v. Wynn, 472 S.W.2d 750, 753 (Tex. 1971). Estoppel by contract is a form of quasi-estoppel that is premised on the concept that a party to a contract will not be permitted to take a position inconsistent with the contract's provisions, to the prejudice of another. G.C. Bldgs., Inc. v. RGS Contractors, Inc., 188 S.W.3d 739, 743 (Tex.App.-Dallas 2006, no pet.); Glover v. Union Pac. R. R. Co., 187 S.W.3d 201, 216 (Tex.App.-Texarkana 2006, pet. denied) (deed must be clear and unambiguous in order for estoppel by deed to apply). Estoppel by contract or deed applies only in the absence of fraud. Warehouse Associates Corp. Centre II, Inc. v. Celotex Corp., 192 S.W.3d 225, 245 (Tex.App.-Houston [14th Dist.] 2006, pet. denied).

At trial, Priour testified that the Youth Ranch accepted the ranch land from Perry subject to the terms of the gift deeds, and had "no objection" to the deed restriction providing that Pedro had the right to continue living on the ranch as long as he was employed there. Bakke testified that the deed restrictions formed the consideration for the conveyance. Priour further testified that he knew it was Perry's intent and desire to continue employing the Rangels for life and to provide for them after their retirement and her death. With respect to the new home Perry constructed in 2001, Priour testified he was "fully aware" of the new house Perry built for the Rangels and never objected that she was building it on the Youth Ranch's property. When asked at trial whether the Rangels have "the right" to live in the new house, Priour replied that he "didn't know if they have a legal right, but we haven't bothered them." However, as previously noted, the Youth Ranch's legal position in this litigation, both in the trial court and on appeal, has been that the Rangels have no legal or equitable right to continue residing on the ranch — no right to live in the old house under the gift deeds because they are no longer employed by Perry; and no right to reside in the new house under the codicil because it is located on Youth Ranch property in which Perry only had a life estate, and therefore could not grant a legal right to occupy the new house beyond her lifetime. Further, the Rangels have no retirement center in which to live rent-free for the rest of their lives because the Youth Ranch did not build the center, in part because it, through Priour and Bakke, was aware that the Rangels already had a place to live on the ranch, i.e., the new home Perry built for them.

The record in this case shows that the Youth Ranch accepted the benefits of Perry's conveyance of the ranch land in the gift deeds, which clearly came with the restriction that the Rangels be permitted to continue residing there on the ranch, although in the old house, for as long as they were employed by Perry. When the Rangels moved into the new home that Perry constructed for them, they were still employed by Perry and she was still there on the ranch. Priour and Bakke admitted that the Youth Ranch was well aware of Perry's intent, expressed verbally and in the codicil, that the Rangels should be allowed to live on the ranch for their lifetimes. Bakke even drafted the codicil, falsely reciting that Perry "had already provided" the Rangels with the right to live in the new house until they died. Further, the Youth Ranch saw the new home being built and knew its purpose, yet it raised no objection to Perry and did not suggest any legal problem with the Rangels continuing to live there after Perry's death. It was only after this litigation began that the Youth Ranch took the position that the Rangels have no right to continue residing on the ranch.

Based on the evidence that the Youth Ranch clearly accepted the gifts of land, cash and infrastructure improvements that Perry provided throughout the years, and had actual knowledge that Perry built the new house specifically for the Rangels to live in for the rest of their lives, yet raised no objection that it was built on property that Perry had previously deeded to the Youth Ranch, we conclude there is sufficient evidence to support the application of quasi-estoppel to prevent the Youth Ranch from now taking the contrary position that the Rangels have no right to continue living in the new house. See Lopez, 22 S.W.3d at 864. Accordingly, we reverse that portion of the trial court's judgment stating the Rangels have no equitable right to reside in the new house, and render judgment that the Rangels do have the equitable right to continue residing in the new house Perry built for them on the ranch for the rest of their lives.

Part III: Gary Priour

Tortious Interference with Gift or Inheritance

In their eighth issue, the Rangels challenge the factual sufficiency of the evidence to support the jury's finding in Question No. 5 that Gary Priour did not, by breaching his fiduciary duty to Perry,¹⁴ prevent the Rangels from receiving a gift or inheritance they otherwise would have received from Perry. In reviewing the factual sufficiency of a jury finding, we consider and weigh all the evidence in a neutral light, and set aside the finding only if the evidence is so weak or if the finding is so contrary to the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1998). We do not substitute our judgment for that of the jury, even if the evidence would support a different answer, because the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Pigott, 154 S.W.3d at 632 (citing Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998)).

14 In Question No. 4, the jury found that a relationship of trust and confidence existed between Gary Priour and Perry.

The Rangels argue the jury's finding in favor of Priour is "against the great weight and preponderance of the evidence" because the jury found in a related question (Question No. 2) that the Youth Ranch did interfere with the Rangels' receipt of a gift or inheritance from Perry. The Rangels assert that a corporation such as the Youth Ranch can only act through its agents, officers or directors, and the evidence showed that the Youth Ranch acted through Priour. See Tex. Bus. Corp. Act Ann. art. 2.31 (Vernon 2003); see also Willis v. Bydalek, 997 S.W.2d 798, 802 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). In fact, the evidence presented at trial showed that while Priour was indeed the founder and current Executive Director of the Youth Ranch, the corporation was managed through its Board of Directors. Priour testified that, as the Executive Director of the Youth Ranch, he was responsible for "administrative duties pertaining to the children's home and school," and that he simply administered the policies and budget approved by the Board of Directors. Priour stated that the Board of Directors of the Youth Ranch makes all the decisions for the corporation. Bakke, who was Chairman of the Board of Directors as well as President of the Youth Ranch at the time of trial, testified that "Hill Country Youth Ranch acts through its Board of Directors," and that the Board of Directors is responsible for the overall policies and major decisions of the Youth Ranch.

Other than their argument that the Youth Ranch acted through Priour, the Rangels do not point out any evidence in the record which would contradict and outweigh the jury's finding that Priour did not interfere with the Rangels' receipt of a gift or inheritance. We conclude the jury's finding that Gary Priour did not commit a breach of his fiduciary duty to Perry that prevented the Rangels from receiving a gift or inheritance is not against the great weight and preponderance of the evidence, and we overrule this issue and affirm the entry of a take-nothing judgment in favor of Priour.

Part IV: Emily Bierschwale

Constructive Fraud — Concan Property

In their third issue, the Rangels assert the trial court erred in disregarding the jury's findings in response to Question Nos. 13 and 14 that Bierschwale committed constructive fraud against the Rangels and that, as a result, the Rangels suffered $1,213,716 in damages for loss of inheritance or gift. The trial court granted Bierschwale's motion for JNOV, which alleged there was no fiduciary relationship between Bierschwale and the Rangels and there was insufficient evidence to support the jury's findings, and entered a take-nothing judgment in favor of Bierschwale on this claim. On appeal, the Rangels argue that under the jury charge no fiduciary relationship was necessary between Bierschwale and the Rangels, and there was sufficient evidence to support the jury's findings. Bierschwale also raises two cross-issues, both of which challenge the factual sufficiency of the evidence to support the jury's finding of constructive fraud and the jury's award of damages.

On the question of whether Bierschwale committed constructive fraud, the jury was instructed that "constructive fraud" occurs "when a person breaches a duty that has a tendency to deceive another person or violates a confidence." In their responses to Question Nos. 7 and 13 of the charge, the jury found that a relationship of trust and confidence existed between Bierschwale and Perry, and that Bierschwale committed constructive fraud against the Rangels that proximately caused damages to them. In response to Question No. 14, the jury awarded $1,213,716 in damages for the Rangels' loss of inheritance or gift.¹⁵

15 The jury also made an express finding in Question No. 14 that the Rangels suffered zero damages for past lost earnings and fringe benefits as a result of Bierschwale's constructive fraud. At oral argument, counsel for the Rangels argued that the approximately $1.2 million awarded in Question No. 14 consisted in part of $92,000 in past lost earnings, an argument which we find to be illogical given the jury's finding of $0 damages for lost earnings.

"Constructive fraud" occurs when one breaches a legal or equitable duty and the law considers it fraudulent because it tends to deceive others, violates a confidence, or injures public interests, regardless of the actor's mental state. Archer v. Griffith, 390 S.W.2d 735, 740 (Tex. 1964); Flanary v. Mills, 150 S.W.3d 785, 795 (Tex.App.-Austin 2004, pet. denied). Constructive fraud is most often present where a fiduciary or confidential relationship has been breached. Vickery v. Vickery, 999 S.W.2d 342, 377 (Tex. 1999); Hubbard v. Shankle, 138 S.W.3d 474, 483 (Tex.App.-Fort Worth 2004, pet. denied). Fiduciary duties arise as a matter of law in certain formal relationships such as attorney-client, partnership and trustee relationships. Ins. Co. of North America v. Morris, 981 S.W.2d 667, 674 (Tex. 1998). Informal fiduciary or confidential relationships may arise when parties have dealt with each other in such a manner for a long period of time such that one party is justified in expecting the other to act in her best interest. Id. A fiduciary relationship encompasses "higher duties, such as duties of good faith, candor and `full disclosure respecting matters affecting the principal's interests and a general prohibition against the fiduciary's using the relationship to benefit his personal interest'. . . ." Flanary, 150 S.W.3d at 795 (quoting Chien v. Chien, 759 S.W.2d 484, 495 (Tex.App.-Austin 1988, no pet.)). When one has a duty to speak the truth, a false representation of a past or present material fact is fraudulent when another relies on it to his detriment. Flanary, 150 S.W.3d at 795.

1. Evidence Related to Finding of "Constructive Fraud" by Bierschwale

We first discuss the evidence in the record that could support the jury's finding that Bierschwale committed constructive fraud against the Rangels, i.e., that she breached a legal or equitable duty to Perry that tended to deceive another, in this case the Rangels. See Archer, 390 S.W.2d at 740; Flanary, 150 S.W.3d at 795. It is clear that Bierschwale owed a fiduciary duty to Perry which arose from her status as the trustee of Perry's Living Trust and as Perry's attorney-in-fact. See Morris, 981 S.W.2d at 674. As noted, the jury found there was a relationship of trust and confidence between Perry and Bierschwale. Thus, we will focus our review on whether there is any evidence that shows Bierschwale breached her fiduciary duty to Perry, and that such breach tended to deceive the Rangels.

A. Perry's Wishes as to the Concan Property in Uvalde County .

At trial, Jim Cauthorn, a relative and old friend of Perry's, testified that his understanding from Perry was that the Rangels were going to get the Concan property; he stated that "everyone knew Perry loved Pedro and wanted him taken care of." Rodney Reagan, another friend of Perry's, testified that Perry contacted him in 2002 and asked him to "see to it" that the Rangels got "all the rest of the Concan property" remaining after the sale of the 510 acres to fund the Charitable Unitrust, i.e., the remaining 724 acres; he is the person who obtained the partial property description of only 320 acres from the Uvalde county courthouse and supplied it to Perry's attorney.

Perry's attorney in Uvalde, Todd Durden, testified that Perry had a "clear intent" in March 2002 to convey the Concan property to Pedro. Perry did not want to leave it to her cousin, and stated several times that she was "worried about cousins wanting to get the property away from Pedro;" Perry also stated she did not want to convey it in her will because she wanted to avoid a distant cousin filing a will contest. Durden stated that Perry had a "real sense of distrust" with regard to her relatives. Perry told Durden that the Concan property she was conveying to Pedro was "along the highway;" however, the 320 acres ultimately conveyed in the first Concan deed using the partial legal description had no highway access. Durden stated he relied on the legal description provided by Perry, which turned out to be only a partial description, and did not do an independent title search himself because it was a gift deed.

B. Bierschwale's Actions .

After the first deed conveying 320 acres of the Concan property was filed in March 2002, Durden got a phone call from Bierschwale on June 12, 2002 in which she stated that she was aware of the conveyance and informed him that she had a power of attorney over Perry.¹⁶ Bierschwale also told Durden that she understood that "more land was supposed to have been conveyed to Pedro." The evidence also showed that after Bierschwale learned of Perry's March 2002 deed of the 320 Concan acres to Pedro, she contacted Bakke in an "urgent call" to express her "great concern" about Perry's welfare. Bakke thereafter prepared a declaration activating the power of attorney making Bierschwale the attorney-in-fact for Perry. Bakke testified that he did not tell his client, Perry, about the activation of the power of attorney, and his letter to Bierschwale suggested that she get Perry to sign the declaration at the same time as she signed her tax returns. Maria testified that when Perry signed the declaration to activate the power of attorney on June 14, 2002, they were in the car after returning from a doctor's appointment; Perry did not have her glasses and was tired. Bierschwale did not explain the document to her and "spoke strongly" to encourage Perry to sign it. Bierschwale herself testified that she did not tell Perry when she signed it that the declaration would activate the power of attorney; rather, about two months later, when Bierschwale started signing Perry's checks herself, she told Perry that she "had a document" activating the power of attorney.¹⁷

16 We note that the declaration activating the Power of attorney was not signed by Perry until June 14, 2002.

17 During the same time period, Bierschwale had Perry sign a written resignation as trustee of her Living Trust, which resulted in Bierschwale becoming the successor trustee of the Living Trust. The resignation document was prepared by Bakke.

Around the same time, Bakke also notified the bank officer to send all correspondence and distributions related to Perry's Charitable Unitrust to Bierschwale, instead of Perry; Bakke admitted that he did not tell Perry about this, but stated he was "acting in Perry's best interests." Bierschwale also closed Perry's bank accounts and transferred the funds into her account as "agent" for Perry. Maria testified that Bierschwale had not told Perry that she closed her bank accounts, and that Perry became very upset when she received the notice from the bank.

Also in July 2002, Bakke drafted a deed conveying "all property in Uvalde County"¹⁸ to Bierschwale as successor trustee of the Living Trust in order to "protect" Perry. Bakke also prepared documents transferring all of Perry's personal property and her life estate in the ranch into Bierschwale's name as trustee of the Living Trust. Bierschwale testified that she did not get Perry's signature on the deed conveying her life estate to the Living Trust, but just signed it as "agent" under the power of attorney. Bierschwale stated she was trying to get all of Perry's property into the Living Trust "to protect her," and denied that it was done to prevent the Rangels from getting any more property from Perry.

18 It is undisputed that the Concan property was the only real property that Perry owned in Uvalde County. There is no indication in the record that Perry knew that Bierschwale had transferred the 404 acres in Uvalde County into the Living Trust.

In August 2002, when Durden attempted to prepare a second deed to convey the remaining 404 Concan acres to Pedro, Bakke sent him a letter on behalf of Bierschwale "as fiduciary" for Perry, stating that Bierschwale held title to the 404 Concan acres. When Durden requested proof of Bierschwale's fiduciary capacity and title to the Concan acreage, Bakke replied that the Perry trust agreement was "private," and refused to provide any details or proof to support his assertions.

When Perry learned this, she instructed Durden to immediately prepare a revocation of Bierschwale's power of attorney. Durden testified that Perry was "very clear" about revoking Bierschwale's power of attorney, and "was very alarmed that Emily [Bierschwale] was doing things against her interests and Pedro's interests." Durden's understanding behind Perry's motivation to revoke the power of attorney was that Bierschwale had "changed her position" regarding the Concan property and was going to try to "take it away from Pedro." Durden testified that Perry was "very alarmed," and "did not trust Emily [Bierschwale] and did not want Emily taking any action on her behalf." Maria Rangel testified that Perry told Bierschwale "not to interfere" with the deed of the Concan property to Pedro.

Finally, at an August 23, 2002 meeting at the office of the Rangels' attorney, Durden recalled that "everyone," including Bakke and Bierschwale, understood that Perry wanted the balance of the Concan property conveyed to Pedro; he did not recall any discussion about the 404 acres being needed for Perry's future expenses or about Perry being in "severe financial straits." Further, Rodney and Deloyce Reagan both testified that at a meeting at Perry's house where the Concan property was discussed, they heard Bierschwale tell Pedro Rangel, "well, Pedro you have 324 acres, and I don't have anything."

We conclude there is more than a scintilla of evidence in the record to support the jury's finding that Bierschwale breached her fiduciary duty to Perry, as trustee of the Living Trust and as her attorney-in-fact, and that such breach tended to deceive the Rangels with respect to Perry's gift of the entire 724 acres of the Concan property. Based on our review of the record, we also conclude that the jury's finding is not against the "great weight and preponderance of the evidence," and overrule Bierschwale's cross-issue raising that argument. See Cain, 709 S.W.2d at 176. Accordingly, we hold the trial court erred in disregarding the jury's finding that Bierschwale committed constructive fraud.

2. Evidence of the Value of the Rangels' Lost Inheritance or Gift — Concan Property

We next determine whether there was any evidence to support the jury's award of $1,213,716 in damages for the Rangels' loss of inheritance or gift caused by Bierschwale's constructive fraud. There was evidence that Perry received over $1.2 million from the sale of the first 510 acres of the Concan property in March 1997, and used the $1.2 million to fund the Charitable Unitrust. In addition, Priour testified that he was aware that Perry was trying to sell the remaining 724 Concan acres during 2001 for $2,850 per acre, which would yield a total sale price of $2,063,400; she received offers, but none at that price. Gran Shandley, a Real County real estate broker, testified that in 2000 he listed Perry's 724 acres of Concan property for sale at more than $2 million. He further testified that the 724 acres was worth $2,200 per acre at the time of trial, for a total value of almost $1.6 million.

We conclude there was evidence from which the Concan property could have been reasonably valued at approximately $1.2 million based on Perry's receipt of that amount for a prior sale of 510 acres of the Concan property and Perry's listing of the 724 acres for sale at more than $2 million in the years 2000 and 2001. The jury had discretion to award damages within the range of evidence presented at trial. Low, 79 S.W.3d at 566; Vela v. Wagner Brown, Ltd., 203 S.W.3d 37, 49 (Tex.App.-San Antonio 2006, no pet.). Based on our review of the record, we also conclude that the jury's damages award is not against the "great weight and preponderance of the evidence," and we overrule Bierschwale's cross-issue raising that argument. Accordingly, we hold the trial court erred in disregarding the jury's award of $1,213,716 in damages for Bierschwale's constructive fraud, and reverse that portion of the trial court's judgment. We note, however, that the award of monetary damages for loss of the Concan property is a double recovery if the Rangels retain title to the full 724 acres upon resolution of Bakke's cross-appeal; therefore, the Rangels would have to elect their remedy. See Stewart Title, 822 S.W.2d at 7; Foley v. Parlier, 68 S.W.3d 870, 882 (Tex.App. — Forth Worth 2002, no pet.).

Part V: Cross-Appeal Regarding Title to Concan Property

In its sole issue on cross-appeal, Perry's estate, through Bakke as independent executor, argues that the trial court erred in granting the Rangels clear title to the 404 acres of Uvalde County real property. The trial court's final judgment awarded "clear and indefeasible title to the 320 acres and 404 acres of the Uvalde County property conveyed by Oma Bell Perry to Plaintiffs by deeds of March 29, 2002 . . . and October 28, 2002 . . ., by which Ms. Perry effectively withdrew the 404 acres from the Oma Bell Perry Living Trust and transferred it to the Rangels." (emphasis ours). Bakke now complains the court erred in awarding the 404 acres to the Rangels because the deed did not express a definitive manifestation of Perry's intent to revoke the trust. See Jameson v. Bain, 693 S.W.2d 676, 681 (Tex.App.-San Antonio 1985, no writ) (holding that revocation instrument must contain definitive manifestation of intent to revoke trust). We respectfully disagree.

The settlor of an inter vivos trust has the power to revoke or modify the trust to the extent the terms of the trust so provide. Restatement (Third) of Trusts § 63 (2003). Perry's trust provided that all revocations must be in writing:

Finally, during the Trustor's life, Trustor shall have the right, with respect to the Trust, by written instrument acknowledged by Trustor and delivered to the Trustee:

(a) To revoke this instrument entirely . . .;

(b) From time to time, to alter or amend this instrument . . .; and

(c) From time to time, to withdraw any part or all of the Trust Estate.

The Rangels assert that the October 2002 written deed by Perry to the Rangels was alone sufficient to show her intent to withdraw the 404 acres from the trust. In support, the Rangels cite Starcrest Trust v. Berry for the proposition that revocation may be held to have occurred by means of a conveyance of trust property by the settlor to a third person. Starcrest Trust v. Berry, 926 S.W.2d 343, 353 (Tex.App. — Austin 1996, no writ). In Starcrest, the court held that the settlor's conveyance of trust property by deed of trust was some evidence of the settlor's intent to exercise the power of revocation. Id.

Bakke, however, responds that the standard used in Starcrest does not apply in a jury trial. Bakke contends that although the jury could have considered the gift deed to be some evidence of Perry's intent to withdraw the property from the trust and give it to the Rangels, without an overt statement of such intent by Perry, her intent was not established as a matter of law. In addition, Bakke argues that because the Rangels did not request that a question be included in the court's jury charge to address the issue of Perry's intent, the issue has been waived and the 404 acres should have remained in the trust; however, Bakke does not cite any case law for this proposition.

Based on the record before us, we conclude that the October 28, 2002 deed proves Perry's intent to withdraw the 404 acres from the Living Trust as a matter of law. As previously discussed, Perry asked her Uvalde attorney, Todd Durden, in March 2002 to draft a deed conveying all 724 acres of the Concan property to the Rangels; however, due to an incomplete legal description, only 320 acres were conveyed to the Rangels in the March 29, 2002 deed. Upon learning of the March conveyance, Bierschwale had Perry relinquish her position as trustee of her Living Trust and sign a declaration activating Bierschwale's power of attorney; Bierschwale then deeded Perry's remaining 404 acres into the Living Trust. We note that Bierschwale, not Perry, signed the deed transferring the 404 acres into the trust; and there is no evidence in the record that Perry ever knew the 404 acres had been transferred to the trust by Bierschwale.¹⁹ Perry was angered when she learned of some of Bierschwale's actions and revoked Bierschwale's power of attorney on August 20, 2002. Subsequently, Perry, with the assistance of her attorney Durden, executed a second deed to convey the remaining 404 acres to the Rangels on October 28, 2002.²⁰

19 At oral argument, counsel for Bakke admitted that she was unsure whether Perry knew that the 404 acres had been transferred to the trust by Bierschwale.

20 There was evidence that Perry intended to deed the remaining acreage to the Rangels on August 6, 2002, but due to correspondence from Bakke to Durden stating that Bierschwale as trustee held title to the 404 acres, the deed was not executed until the fall.

We conclude, based on the unique facts of this case where it is virtually undisputed that Perry did not know the 404 acres had been transferred to the trust, that the October 28, 2002 written deed is "a definitive manifestation" of Perry's intent and is sufficient as a matter of law to withdraw the 404 acres from the Living Trust. Bakke cites no legal authority, and we find none, for his position that the question of Perry's intent had to be submitted to the jury. We note that in Question No. 34 the jury did make an affirmative finding that, at the time she executed the October 28, 2002 deed, Perry had "sufficient mind and memory to understand the nature and consequences of her acts and the business she was transacting." Accordingly, we overrule the estate's issue on cross-appeal, and affirm the trial court's award of clear title to the 404 acres of property in Uvalde County to the Rangels. As noted supra, because the Rangels are only entitled to one recovery with respect to the Concan property — monetary damages for loss of the property due to Bierschwale's constructive fraud, or clear title to the full 724 acres — we must remand these issues to the trial court for an election of remedies. Part VI: Exclusion of Evidence Regarding a Conspiracy

Finally, in their sixth issue, the Rangels challenge the trial court's exclusion of plaintiffs' exhibit 90, a billing statement from attorney Gerald Geistweidt to Bierschwale, as evidence of a conspiracy to deprive the Rangels of benefits to which they were entitled. On appeal, we review the trial court's decision to admit or exclude evidence for an abuse of discretion. See State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). An abuse of discretion occurs when the trial court acts without regard to any guiding rules or principles. Alvarado, 897 S.W.2d at 754. We reverse based on the erroneous admission or exclusion of evidence only if the appellant shows error that was calculated to cause and probably did cause the rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1); Vela, 203 S.W.3d at 52. The appellant must demonstrate that the excluded evidence was both controlling on a material issue and not cumulative of other evidence. Williams Distrib. Co. v. Franklin, 898 S.W.2d 816, 817 (Tex. 1995). An appellate court must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n. 5 (Tex. 1989).

Bierschwale hired Geistweidt to draft deeds from Perry to herself and to represent her in her suit against the Rangels. The fee statement prepared by Geistweidt contained time entries from September 25, 2002 to October 13, 2003. The Rangels contend that the fee statement is circumstantial evidence of a conspiracy between the Youth Ranch, acting through Priour, and Bakke and Bierschwale. Specifically, the Rangels point to the November 4, 2002 entry showing that Geistweidt met with Bakke and Bierschwale for 3½ hours; that same day they revised Perry's trust agreement. The fee statement reflects at least five other entries showing phone conferences between Bierschwale, Priour, and Bakke on subsequent dates.

The defense objected to admission of the fee statement on hearsay grounds, and the Rangels countered that the statement was admissible under Rule 801(e)(2)(D) as "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship."²¹ Tex. R. Evid. 801(e)(2)(D). The trial court denied admission of the exhibit on hearsay grounds and because there was "not even a scintilla of evidence of an — an alleged conspiracy." On appeal, the Rangels argue that the trial court erred in excluding the exhibit and testimony related to it because it was relevant to their claim of conspiracy and the error was harmful because the jury failed to find that the Youth Ranch, Priour, or Bierschwale were part of a conspiracy that damaged the Rangels.²²

21 The Rangels do not advance a non-hearsay argument on appeal.

22 Question No. 20 asked the jurors whether Hill Country Youth Ranch, Priour, or Bierschwale were part of a conspiracy that damaged Pedro and Maria Rangel. The jury answered "no" as to all three defendants.

The elements of a civil conspiracy are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result. See Operation Rescue-National v. Planned Parenthood of Houston Southeast Tex., Inc., 975 S.W.2d 546, 553 (Tex. 1998); Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983).

Assuming without deciding that the trial court erred in excluding the exhibit, we cannot agree that the Rangels were harmed by the exclusion. The Rangels do not specify how they were harmed by the exclusion of exhibit 90, and even point to other evidence the jury heard regarding an alleged conspiracy, including: Bakke acted at various times as the Youth Ranch's lawyer, director, and president while also personally representing Perry and drafting documents and instruments for her which ultimately benefitted the Youth Ranch and depleted Perry's estate; Bakke ignored the February 1998 letter Perry wrote to him expressing her desire to provide retirement income for the Rangels and knew that the codicil he drafted could not have any actual effect; and the Youth Ranch encouraged Bierschwale to activate her power of attorney and to convey Perry's remaining property into the trust to defeat Perry's intention to convey property to the Rangels. Because, as the Rangels admit, the jury heard "sufficient evidence upon which [they] could have found the existence of a conspiracy," we cannot conclude that the Rangels were harmed by the exclusion of exhibit 90. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004) (the exclusion of merely cumulative evidence cannot constitute harmful error). Accordingly, the Rangels' sixth issue is overruled.

Conclusion

Based on the foregoing analysis, we conclude that the trial court erred in granting summary judgment for Bakke on the Rangels' claim for tortious interference with inheritance or gift, and we reverse that portion of the judgment and remand to the trial court for further proceedings on that claim. With respect to the Hill Country Youth Ranch, we affirm the trial court's entry of a take-nothing judgment on the Rangels' claims for breach of the gift deeds and tortious interference with gift or inheritance; we further affirm the denial of attorney's fees to the Rangels on this claim. With respect to Gary Priour, we affirm the entry of a take-nothing judgment on the Rangels' claim for tortious interference with gift or inheritance. With respect to Emily Bierschwale, we reverse that portion of the judgment disregarding the jury's finding of constructive fraud and award of $1,213,716 in damages, and reverse the entry of a take-nothing judgment in favor of Bierschwale. Further, we overrule the estate's cross-appeal and affirm that portion of the judgment awarding the Rangels clear title to the full 724 acres of Concan property; however, we note that title to the property constitutes a double recovery with the monetary damages for Bierschwale's constructive fraud, and we remand for the Rangels to make an election of remedies in the trial court. In addition, we reverse that portion of the trial court's judgment holding that the Rangels have no legal or equitable right to reside on the ranch, and render judgment that the Rangels have the equitable right to reside in the new residence Perry built for them on the ranch for the rest of their lives. Finally, we deny the Rangels' issues challenging the exclusion of evidence. All other portions of the trial court's judgment are affirmed.